Page:North Dakota Reports (vol. 3).pdf/118

 agent into the warehouse where the property was stored, showing it to him, and locking the warehouse, and giving him the key. A question of evidence arises at this point also. In the warehouse where the buggies were stored was a large amount of other property, (farm machinery principally,) which had formerly belonged to respondent's vendors, and which they had, a few days prior, transferred to one of their creditors, and had also given to such creditor a-key to the warehouse. Appellant offered to prove that, by agreement between the vendors and such creditor, the creditor was to have exclusive control of the warehouse after the key was delivered to him. This evidence the court excluded, and, we think, properly. If such agreement had in fact been made and carried out, and if such creditor had exclusive control of and access to said warehouse, holding the property therein that had not been conveyed to him simply as a gratuitous bailee for the owners, it may be that upon a subsequent sale of such property by the owners, no delivery that would be good as against existing creditors could be made without notice to such bailee, and his consent either to relinquish to the purchaser or to hold as his bailee. Some of the cases would seem to so hold. See Hildreth v. Fitts, 53 Vt. 684; Hallgarten v. Oldham, 135 Mass. 1; Campbell v. Hamilton, 68 Iowa, 293, 19 N. W. Rep. 220. But it is unquestioned in this case that respondent's vendors did have access to the warehouse, and had possession of a key thereto, and unlocked the warehouse, and pointed out the property in controversy to respondent's agent, and subsequently locked the building, and gave such agent the key. Nor is it questioned that at the same time the agent of the party to whom the farm machinery had been sold held a key to the building, and had access thereto. If respondent's vendor were violating any agreement in not allowing said party exclusive possession, that fact cannot affect appellant’s legal rights. If under the circumstances, the acts of respondent’s vendors amounted to a legal delivery, they were none the less a delivery because such vendors, at a prior time, had made an agreement, which they had failed to perform, that